ABSTRACT
Understand the purposes of the preliminary reference procedure Appreciate how the procedure has been used to develop Community law Understand what is meant by ‘a court or tribunal’ in this context Know when a court has a discretion to make a preliminary reference and when it has an obligation to refer Identify when a preliminary reference would not be necessary Consider whether the ECJ can refuse to hear a reference Understand the effect of a preliminary ruling Be aware of proposals for reform of the preliminary reference procedure
PRELIMINARY REFERENCES Article 234 of the EC Treaty gives the ECJ jurisdiction to give preliminary references on questions of interpretation and validity of Community law at the request of the national courts of a Member State. The procedure is for the national court to hear the case, and when it encounters problems relating to interpretation of the Treaties or the interpretation or validity of acts of the institutions of the Community, e.g. regulations, directives, decisions, opinions and recommendations, the case is referred to the ECJ. It should be stressed that the validity of the Treaties cannot be questioned. After a ruling, the ECJ returns the case to the national court for it to be applied to the facts of the case. So, the case starts and ends in the national courts. Art 234, para 2 provides that ‘any court or tribunal’ has a discretion to request a preliminary reference, but a court against whose decision there is no judicial remedy is obliged to make a preliminary reference under Art 234(3).
